State v. Gaines

688 So. 2d 679, 1997 WL 40146
CourtLouisiana Court of Appeal
DecidedJanuary 29, 1997
Docket96-KA-1850
StatusPublished
Cited by30 cases

This text of 688 So. 2d 679 (State v. Gaines) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Gaines, 688 So. 2d 679, 1997 WL 40146 (La. Ct. App. 1997).

Opinion

688 So.2d 679 (1997)

STATE of Louisiana
v.
Samuel GAINES.

No. 96-KA-1850.

Court of Appeal of Louisiana, Fourth Circuit.

January 29, 1997.

*680 Sherry Watters, Orleans Indigent Defender Program, New Orleans, for Appellant.

Harry F. Connick, District Attorney, Joseph E. Lucore, Assistant District Attorney, New Orleans, for Appellee.

Before KLEES, LOBRANO and ARMSTRONG, JJ.

*681 LOBRANO Judge.

Defendant, Samuel Gaines, was charged with possession of cocaine, a violation of La. R.S. 40:967. A six member jury found him guilty as charged. He was subsequently adjudicated a fourth felony offender and sentenced to serve twenty years at hard labor.

FACTS:

On November 17, 1994, two police officers, while on patrol, approached the corner of Annunciation and Pleasant Streets. There, they observed defendant. One of the officers recognized defendant and knew that he was wanted. When defendant saw the officers' car approaching, he fled. The officers radioed other units in the area. Defendant was quickly apprehended. During a frisk search, a nine mm. loaded handgun was discovered in defendant's waistband. Defendant was then arrested. A further search revealed a small glass pipe containing a powder residue which later tested positive for cocaine.

Defendant testified in his own behalf. He admitted possessing the handgun and that he pled guilty to possessing it. He denied, however, possessing the glass pipe containing the cocaine residue. He testified he ran from the officers because he was in possession of the gun, not because he was in possession of cocaine. He stated that as he sat in the police car, one of the officers reached into the car, placed his hand near his sweatshirt, removed the glass pipe and told the other officers that he found it on defendant. The police officers testified that they routinely search their cars before and after transporting a suspect. Defendant admitted having prior convictions for theft, drug possession and armed robbery.

Defendant asserts the following assignments of error:

1. The trial court erred by denying defendant's challenge for cause of a prospective juror who was a police officer and for denying defendant's motion for a new trial because of this error.
2. The trial court erred by denying defendant's motion for sentencing pursuant to State v. Dorthey, and for imposing an excessive sentence.
3. The evidence was insufficient to support the conviction.
4. Defendant's double jeopardy rights were violated.

ASSIGNMENT OF ERROR NO. 1:

Defendant asserts the trial court erred by denying his challenge for cause of a juror who was a police officer and for denying his motion for a new trial based upon this refusal. We find merit in this argument.

Defendant challenged prospective juror, Keith Ferguson, for cause because Ferguson was an active police officer. His challenge was denied. Defendant then used a peremptory challenge to excuse Ferguson. Defendant then exhausted his remaining peremptory challenges before the entire panel was chosen.

Louisiana Code of Criminal Procedure Article 797 allows a defendant or the State to challenge a juror for cause for several reasons, including the impartiality of the juror. Where a defendant exhausts his peremptory challenges, he need only show that the trial court erroneously denied a challenge for cause. No additional showing of prejudice is required. See, State v. Robertson, 92-2660 (La.1/14/94), 630 So.2d 1278; State v. Mathis, 95-0862 (La.App. 4th Cir. 6/5/96), 675 So.2d 1217.

It has long been held that an actively employed law enforcement officer is not a competent criminal juror. State v. Simmons, 390 So.2d 1317, 1318 (La.1980); See also, State v. Vanderpool, 493 So.2d 574 (La. 1986).[1] Thus, it was reversible error for the trial court to deny the challenge for cause. Defendants motion for a new trial should have been granted based on this error. For this reason, defendant's conviction and sentence must be reversed and a new trial ordered.

ASSIGNMENT OF ERROR NO. 2

*682 Defendant argues that the trial court erred by refusing to sentence defendant below the statutory minimum pursuant to State v. Dorthey, 623 So.2d 1276 (La.1993).

Because we have determined that defendant's conviction must be reversed, discussion of this assignment is pretermitted.

ASSIGNMENT OF ERROR NO. 3:

Defendant asserts there is insufficient evidence to support his conviction. Specifically he asserts the state failed to prove he possessed the cocaine on the date of his arrest. We disagree.

Although his conviction must be reversed on other grounds, the issue of sufficiency of evidence must be addressed. When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La.1992); State v. Monds, 91-0589 (La.App. 4th Cir. 1/4/94), 631 So.2d 536, 539, writ den. 94-0626 (La.4/22/94), 637 So.2d 164. If the evidence adduced at trial was insufficient, no retrial is possible.[2]

In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 588 So.2d 757 (La.App. 4th Cir.1991). However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305 (La.1988). The reviewing court is not permitted to consider just the evidence most favorable to the prosecution but must consider the record as a whole since that is what a rational trier of fact would do. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier's view of all the evidence most favorable to the prosecution must be adopted. The fact finder's discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Mussall; Green, supra. "[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence." State v. Smith, 600 So.2d 1319 (La.1992) at 1324.

In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La.R.S. 15:438. This is not a separate test from Jackson v. Virginia, supra, but rather is an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La.1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, 504 So.2d 817 (La.1987).

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Bluebook (online)
688 So. 2d 679, 1997 WL 40146, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gaines-lactapp-1997.